People v. Douglas

• Decision Date: 05 June 1975
• Docket Number: No. 59911,59911
• Citation: 331 N.E.2d 359,29 Ill.App.3d 738
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Faulton G. DOUGLAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 359

331 N.E.2d 359

29 Ill.App.3d 738

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Faulton G. DOUGLAS, Defendant-Appellant.

No. 59911.

Appellate Court of Illinois, First District, Third Division.

June 5, 1975.

Rehearing Denied June 26, 1975.

Kaplan & Kaplan, Marshall Kaplan, Chicago, for defendant-appellant.

Bernard Carey, State's Atty. (Laurence J. Bolon, John F. Brennan, Iris E. Sholder, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

McNAMARA, Justice.

Defendant, Faulton G. Douglas, was charged by informations with the offenses of disorderly conduct and resisting arrest. After a jury trial in the circuit court of Cook County, defendant was found guilty of both charges. The court fined him $25 on the disorderly conduct conviction and $100 on the resisting arrest conviction, plus court costs. Defendant appeals, contending that the informations were legally deficient; that he was not proved guilty of the charges beyond a reasonable doubt; and that prejudicial misconduct on the part of the prosecutor denied him a fair trial.

On July 7, 1972, at approximately 8:30 p.m., defendant was arrested by two Illinois State police officers at 118th and Halsted Streets in the City of Chicago. The arrest occurred on property owned by the defendant. The testimony adduced at trial concerning the incident was highly disputed.

Dennis Angelo, an Illinois State trooper, testified that he and his partner, William Gegenwarth, were riding on patrol in a marked squad car on the evening in question. Gegenwarth drove into an apparently abandoned service station to intercept a traffic offender spotted minutes before. After three or four minutes had passed, defendant, admittedly not the traffic offender, drove into the station and pulled adjacent to the police car. Defendant then screamed an obscenity. When defendant complied with Angelo's request to repeat his statement, both officers exited their vehicle. Defendant parked, got out, and approached the officers. According to Angelo, he sought to discover defendant's problem and to try to calm him down. Defendant continued to scream that the police had no business on his property, punctuating his remarks with profanities and refusing to produce any identification. When Officer Angelo noticed several pedestrians and customers at a frozen custard stand across the street standing and looking in their direction, he immediately informed defendant that he was under arrest for disorderly conduct. Defendant then started to walk toward the service station entrance, saying that he owned the station and that his identification was inside the office. Gegenwarth refused to permit defendant to open the door, and finally pushed defendant away. Defendant began to yell again and walk toward his vehicle. The officers followed, admonishing defendant that they would have to arrest him for resisting arrest if he did not get into the squad car. When defendant refused to heed their warning, Gegenwarth grabbed defendant's arm. When defendant pulled his arm back and appeared ready to strike Gegenwarth with his fist, Gegenwarth sprayed mace into defendant's face. Subdued, defendant was handcuffed and helped to the police car. Angelo obtained defendant's permission to get the latter's identification papers from the glove compartment of his auto. Angelo noticed that the number of people watching had grown to eight to ten.

On cross-examination, Officer Angelo stated that at some point during the incident he also may have been screaming. He added that while the underlying reason for the initial arrest was the fact that defendant had disturbed the people nearby, he never questioned any of them and none approached him.

Officer Gegenwarth confirmed Angelo's account that they had been on defendant's property for three or four minutes awaiting the passing of a traffic offender when defendant arrived. Defendant screamed obscenities, 'threshed' his arms about, and loudly proclaimed that the police had no right to be on his property. The officer observed that people across the street and at the frozen custard stand were looking in their direction. Angelo then told defendant he was under arrest for disorderly conduct. Defendant dared the officers to try to take him and began walking to the service station building with keys in his hand, purprotedly to obtain his identification. Gegenwarth stationed himself in front of the door to block defendant's entrance. The officer did not know what might be inside. After defendant was pushed away, he resumed screaming. Later in the squad car, defendant attempted to leave and Gegenwarth again sprayed mace on defendant's shirt to restrain him. Gegenwarth stated on cross-examination that at times his voice may have been as loud as defendant's. He estimated the number of people watching the incident to be ten to fifteen. He did not speak to any of them or get any of their names.

Dan Oswald, testifying for defendant, stated that he was talking to another neighbor across the street during the occurrence. In his opinion, the squad car had been parked on defendant's property for 15 to 20 minutes before defendant arrived. The witness observed defendant get out of his auto, wave to the officers, converse with them after they exited the police car, and then walk toward the service station building out of his view. The next thing he saw was defendant dropping to his knees. Oswald estimated that he was standing about 100 feet from the officers and defendant and about the same distance from the frozen custard stand. He was unable to hear anything the officers or defendant said. He observed one or two customers at the frozen custard stand and did not see a crowd congregate.

George Cristoff testified for defendant that he was talking to Oswald outside their homes when this incident occurred. He estimated that the officers were on defendant's property for fifteen minutes before defendant arrived. Because of his vantage point he was unable to see anything that took place at the service station. He did not hear any conversation and did not see a crowd congregate to view the incident.

Defendant testified that upon driving into his service station he parked and waved at the officers in a friendly manner. He was not annoyed at their presence because he considered it free protection. Angelo responded with a profanity. When defendant commented that he had meant no harm, Gegenwarth uttered a profanity, to which defendant responded in kind. Both officers exited the squad car, Gegenwarth with gun drawn. After Gegenwarth asked to see defendant's driver's license, defendant said that it was in the glove compartment of his car and offered to get it. Gegenwarth replied that defendant was under arrest. When that officer later told defendant to get the license, defendant was maced as he tried to enter his car. Defendant then felt two sharp blows to his head. He was handcuffed and taken to the police station. En route, defendant was questioned regarding his knowledge of any sales of guns or dope in the area. Defendant's negative responses prompted continued macing in his face by Gegenwarth.

Defendant's primary arguments with regard to the disorderly conduct conviction relate to the legal sufficiency of the information charging him with that offense and to the sufficiency of the proof offered at trial to establish his guilt. We elect to reach the second issue.

A person commits the offense of disorderly conduct when he knowingly acts in such unreasonable manner as to harm or disturb another and provoke a breach of the peace. (Ill.Rev.Stat.1971, ch. 38, par. 26--1(a)(1).) Arguing with a police officer, even if done loudly, will not of itself constitute a violation of this section. (See City of Chicago v. Morris (1970), 47 Ill.2d 226, 264 N.E.2d 1; City of Chicago v. Wender (1970), 46 Ill.2d 20, 262 N.E.2d 470.) What is reasonable must always depend upon the facts and circumstances of the particular case. People v. Raby (1968), 40 Ill.2d 392, 240 N.E.2d 595, cert. den. 1969, 393 U.S. 1083, 89 S.Ct. 867, 21 L.Ed.2d 776.

The crux of defendant's reasonable doubt contention centers upon the amount of evidence offered to prove a breach of the peace. The State maintains that the existence of a crowd looking in the direction of the participants was sufficient to create a jury question on the issue. The evidence is conflicting as to whether a group of people congregated to view the incident and, if they did, as to their number and location. In any event, viewing the evidence most favorable to the State, it is clear that the proof was insufficient on this point. Both officers testified that defendant's arrest for disorderly conduct was predicated upon the fact that people in the area began looking in their direction. Most of the onlookers appeared to be approximately 100 to 200 feet away. Neither officer questioned any of them after the arrest was made.

In City of Chicago v. Blakemore (1973), 15 Ill.App.3d 994, 305 N.E.2d 687, this court reversed a conviction for disorderly conduct that was based upon the use of defendant's vulgar language and the fact that a crowd had gathered to watch the incident. We noted that no disturbance or disorder had occurred and that no evidence had been introduced as to the effect of defendant's conduct upon the bystanders. Accordingly, the complete lack of any evidence that a breach of the peace had occurred required reversal of the conviction.

The reasoning of Blakemore is sound and we adopt it. Vulgar language, however distasteful or offensive to one's sensibilities, does not evolve into a crime because people...